Today nearly 20 percent of the human genome is patented. Thousands of genetically modified plants and animals are patented as well. But those patents could soon be invalidated, depending on how the Supreme Court of the United States (SCOTUS) rules in a pair of key cases it will hear later this year.

Myriad and the University of Utah had patented a pair of genes -- BRCA1 and BRCA2 -- which are associated with breast cancer. They, and other human gene patent holders claim that isolating human genes makes them patentable, despite the same gene appearing in nature. They feel that their patents entitle them to block research on the human genes, unless various companies and research institutions pay their fees.

The other significant case involves a 75-year-old southwestern Indianan farmer's case against Monsanto Comp. (MON) regarding genetically modified organism (GMO) crop lines. Lawyers for Vernon Hugh Bowman argue that companies like Monsanto should not be able to stake ownership to the offspring of GMO crops capable of reproduction.

Monsanto argues that ruling second-generation crops patent-free would "devastate innovation in biotechnology", commenting, "Investors are unlikely to make such investments if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies."

One acre of GMO soybeans can produce enough beans to seed 26 acres of crop. In other words if the SCOTUS sides with Mr. Bowman, GMO seeds may be a one-time purchase for careful farmers.

Currently, Monsanto requires farmers to sign contracts not to save seeds. It has filed 140 patent lawsuits against 410 farmers and 56 small farm businesses, according to The Center for Food Safety. While most of the cases were settled out of court, Monsanto scooped up $23.67M USD in judgements from the farmers who did try to fight it in court.

Mr. Bowman's case revolves around Roundup, a popular pesticide used on 90 percent of soybean crops in the U.S. Monsanto produced a special patented breed of soybean dubbed "Roundup Ready", which is immune to the herbicide.

Traditionally Mr. Bowman paid for a preliminary order of Roundup Ready soybean seeds each year. But for his second crop he bought commodity soybeans from a local grain elevator, as that crop is more often prone to fail and Monsanto's seed is expensive. The elevator grain consists of a blend of soybeans, most of which are Monsanto-derived crops. Mr. Bowman argues he should not be held accountable for using that crop.

Unlike the Myriad case, the Monsanto case does not look to directly challenge the patentability of GMOs. Rather, it argues that GMO crops should be eligible for patent exhaustion -- once [their seeds] are sold, the patent should no longer apply, they argue.

Mr. Bowman has done much of the research for the case himself on a library loaned computer (as he does not own a PC). He is represented by Mark P. Walters of the firm Frommer Lawrence & Haug, which took the case on pro bono. Despite the firm offering its services pro bono, Mr. Bowman has still been forced to pay over $31,000 in legal fees.

Vernon H. Bowman [Image Source: Aaron P. Bernstein for The New York Times]

In an interview with The New York Times, he states, "I was prepared to let them run over me. but I wasn’t getting out of the road."

A date for the arguments has not been set.

Admittedly the cases are very different in several ways, but cumulatively they should prove a critical test of whether companies can reliably (and legally) patent living organisms.

quote: If anything, Monsanto should be suing the local grain elevator for distributing their product without their permission

Well, Monsanto has a history of suing people who are less able to defend themselves thinking that an example needs to be set or maybe they are just mean. Suing a co-op or larger corporation is not what they like to do, corporations are more able to defend themselves.